Watchdog Lines up Against Warner Bros.

(CN) – The Electronic Frontier Foundation says in an amicus brief that Warner Bros. should be held responsible for its false copyright claims, which are at the center of a counterclaim that a file-sharing website filed against the Hollywood filmmaker. The Electronic Frontier Foundation, which fights for civil liberties in the digital world, claims Warner is using an “automated dragnet technique” it knows is flawed to send out takedown notices to potential copyright infringers. Warner Bros. Entertainment and others sued Hotfile in February 2011, claiming the Florida-based file-hosting website violated copyright and induced copyright violations by storing and letting users share pirated movies and TV shows. Joining Warners as plaintiffs were Disney, Twentieth Century Fox Film Corp., Universal City Studios, and Columbia Pictures. Hotfile, which charges users a monthly fee, pays affiliates who upload content to the “cyberlockers,” when users download the material. The movie studios seek access to Hotfile’s user and affiliate data to ascertain the severity of infringing activity. Hotfile claimed that was a violation of privacy, but U.S. District Judge Adalberto Jordan disagreed. Hotfile countersued in November 2011, claiming Warner filed bogus copyright infringement claims against it because Warner uses an inaccurate computer program to detect infringement and send out takedown notices. Warner sought summary judgment, claiming that since a computer program cannot purposely lie, Warner cannot be held responsible for the program’s mistakes. The Electronic Frontier Foundation filed its amicus brief in February, supporting Hotfile’s opposition to Warner Bros.’ motion for summary judgment on its counterclaim, under the Digital Millennium Copyright Act of 1998 (DMCA). “EFF urges the court to firmly reject Warner’s strained analyses and hold it accountable for its improper takedowns,” the brief states. It adds: “In effect, Warner argues that it can arrange to be willfully blind to its improper takedowns, without consequence.” The foundation says that when Congress created online copyright laws, it wanted copyright owners to be able to deal efficiently with infringement, so they are allowed to send takedown notices without judicial review. Nevertheless, to curb abuse of the expedited process, Congress also permitted lawful copyright users to hold owners responsible for bad faith takedown notices. The fundation claims: “Any company could sidestep accountability for improper takedowns by simply outsourcing the process to a computer. What is worse, copyrights owners would have a perverse incentive to dumb-down the process, removing human review so as to avoid the possibility of any form of subjective belief. The tragic consequences foor lawful uses are obvious: untold numbers of legal videos would be taken down, whether or not the uses were fair or even licensed. “Imagine the potential for mischief: Let’s say that Warner does not like competition from Universal. It could set a computer to search through Universal’s online presence, with the loosest possible settings, and issue takedown to Universal’s ISP for spurious claims. Nor is this scenario far-fetched: anticompetitive uses of the DMCA take down proves are commonplace.” The foundation says that malice need not be a deliberate lie, as Warner claims, but “the Eleventh Circuit Court of Appeals has held that malice may be shown by evidence of a grossly inadequate investigation. Hunt v. Liberty Lobby, 729 F.2d 631, 643-44 (11th Cir 1983).” The brief adds: “These lines of authority recognize the injustice of absolving malfeasors who too steps to avoid gaining actual knowledge of their improper acts, as Warner did in implementing a system it admits ‘is bound to produce some errors.’ … “Congress intended … to impose a meaningful deterrent, ensuring that copyright holders have the requisite good faith basis before initiating an extra-judicial process that would potentially take protected expression offline.” The Electronic Frontier Foundation is represented by Dineen Pashoukos Wasylik, with of Conwell Kirkpatrick, of Tampa.